Citation Nr: 1023638
Decision Date: 06/24/10 Archive Date: 07/01/10
DOCKET NO. 04-27 595 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a right knee
disability, claimed as right knee scarring and torn meniscus.
2. Entitlement to service connection for a left knee
disability, claimed as left knee scarring.
3. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
4. Entitlement to service connection for a psychiatric
disability other than PTSD.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and K. K.
ATTORNEY FOR THE BOARD
James. R. Siegel, Counsel
INTRODUCTION
The Veteran served on active duty from June 1981 to April
1987.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Regional Office (RO).
By rating action dated February 2003, the RO denied the
Veteran's claim for service connection for PTSD. In a July
2004 rating decision, the RO also denied service connection
for bilateral knee disabilities. When this case was
previously before the Board of Veterans' Appeals (Board) in
August 2007, it was remanded for additional development of
the record. By decision in August 2009, the Board denied the
Veteran's claims. He appealed this determination to the
United States Court of Appeals for Veterans Claims (Court)
which, by Order dated February 2010, granted a Joint Motion
for Partial Remand (Joint Motion).
In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court
clarified how the Board should analyze claims for PTSD and
other acquired psychiatric disorders. As emphasized in
Clemons, although a Veteran may only seek service connection
for PTSD, the Veteran's claim "cannot be limited only to that
diagnosis, but must rather be considered a claim for any
mental disability that may be reasonably encompassed." Id.
Essentially, the Court found that a Veteran does not file a
claim to receive benefits only for an acquired psychiatric
disorder, such as PTSD, but in fact makes a general claim for
whatever mental condition may be afflicting the Veteran.
Accordingly, the Board has recharacterized the issues as set
forth on the cover page.
The Joint Motion noted the Veteran had abandoned his claim
for service connection for residuals of a fractured sternum.
The issues of service connection for disabilities of each
knee and for a psychiatric other than PTSD are addressed in
the REMAND portion of the decision below and are REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDING OF FACT
The Veteran does not have PTSD due to an in-service stressor.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.304(f)
(2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act
The Veterans Claims Assistance Act (VCAA) redefined VA's duty
to assist the appellant in the development of a claim. VA
regulations for the implementation of the VCAA were codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2008).
The notice requirements of the VCAA require VA to notify a
veteran of what information or evidence is necessary to
substantiate the claim; what subset of the necessary
information or evidence, if any, the claimant is to provide;
and what subset of the necessary information or evidence, if
any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009).
The requirements apply to all five elements of a service
connection claim: veteran status, existence of a disability,
a connection between a veteran's service and the disability,
degree of disability, and effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA
notice must be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (in this case, the RO). Id; see
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, insufficiency in the timing or content of VCAA
notice is harmless if the errors are not prejudicial to the
claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
2004) (VCAA notice errors are reviewed under a prejudicial
error rule).
In this case, in November 2002 and May 2004 letters, issued
prior to the rating decisions on appeal, and in a September
2007 letter, the VA provided notice to the Veteran regarding
what information and evidence is needed to substantiate his
claims for service connection, to include what information
and evidence must be submitted by the Veteran and what
information and evidence will be obtained by VA. A May 2006
letter advised the Veteran of how the VA determines a
disability rating and assigns an effective date, and the type
of evidence which impacts such.
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
appellant. Specifically, the information and evidence that
have been associated with the claims file includes service
treatment records, Social Security Administration records,
private and VA medical records, the report of a VA
examination, and the Veteran's testimony at a hearing before
the undersigned.
As discussed above, the VCAA provisions have been considered
and complied with. The appellant was notified and aware of
the evidence needed to substantiate this claim, the avenues
through which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence. The Veteran was an active
participant in the claims process by submitting evidence and
testimony. Thus, he was provided with a meaningful
opportunity to participate in the claims process and has done
so. Any error in the sequence of events or content of the
notice is not shown to have affected the essential fairness
of the adjudication or to cause injury to the claimant.
Therefore, any such error is harmless and does not prohibit
consideration of this matter on the merits. See Conway,
supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc.,
159 F.3d 534, 549 (Fed. Cir. 1998).
Analysis
The Board has reviewed all the evidence in the appellant's
claims file. Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the appellant
or obtained on his behalf be discussed in detail. Rather,
the Board's analysis below will focus specifically on what
evidence is needed to substantiate the claim and what the
evidence in the claims file shows, or fails to show, with
respect to the claim. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Evidence of continuity of symptomatology from the time of
service until the present is required where the chronicity of
a condition manifested during service either has not been
established or might reasonably be questioned. 38 C.F.R. §
3.303(b). Regulations also provide that service connection
may be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disability was incurred in service.
38 C.F.R. § 3.303(d).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a); a link, established by medical evaluation,
between current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service
stressor occurred. If the evidence establishes that a
veteran engaged in combat with the enemy and the claimed
stressor is related to that combat, in the absence of clear
and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions, or hardships of a veteran's service, the
veteran's lay testimony may establish the occurrence of the
claimed in-service stressor. 38 C.F.R. § 3.304(f).
If, however, a veteran did not serve in combat, or if the
claimed stressor is not related to combat, there must be
independent evidence to corroborate the veteran's statement
as to the occurrence of the claimed stressor. See Doran v.
Brown, 6 Vet. App. 283, 288-89 (1994). A veteran's testimony
alone cannot establish the occurrence of a non-combat
stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166
(1996). Furthermore, an opinion by a medical health
professional based on post-service examination of the veteran
cannot be used to establish the occurrence of a stressor.
See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996).
In order to prevail on the issue of service connection there
must be medical evidence of a current disability; medical
evidence, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
competent evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21
Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346
(1999).
The evidence supporting the Veteran's claim includes the
service treatment records and some of the post-service
medical evidence of record. The service treatment records
confirm the Veteran was involved in a motor vehicle accident
in March 1985.
Social Security Administration records reflect the Veteran
was seen by a private psychologist in January and October
1996. Each evaluation reflects a diagnosis of PTSD.
The Veteran was seen by another private psychologist in May
2000. The diagnoses included PTSD.
VA outpatient treatment records disclose the Veteran was seen
in August 2006 and reported he had been involved in a motor
vehicle accident in March 1985. He related he had
experienced nightmares since the accident. He also indicated
he was depressed. He was seen the next day in the mental
health clinic, and described the automobile accident and
having intrusive recollections. The examiner stated he felt
the Veteran had mild PTSD symptoms that seemed residual to
the motor vehicle accident and his medical condition. It was
noted that a great deal of the session was on anger and the
Veteran's feelings of victimization related to his military
experiences as they related to his medical health and
subsequent to the motor vehicle accident.
The evidence against the Veteran's claim includes the service
treatment records and the post-service evidence of record.
The service treatment records are negative for complaints or
findings pertaining to PTSD.
On the Veteran's application for Social Security
Administration benefits dated November 1995, he stated the
condition that prevented him from working was PTSD, and that
it was due to the incident that occurred in February 1993
outside Waco, Texas. He maintained he had constant reminders
of the children and the people he had come to know who were
living there. He mentioned the fire and when children and
agents lost their lives.
The Veteran was seen by a private psychologist in January
1996. It was reported he had been circumstantially involved
in the Bureau of Alcohol, Tobacco and Firearms (ATF) assault
on the Branch Davidian complex in Waco, Texas in February
1993. It was stated the Veteran operated a firearms
dealership and established a working relationship with David
Koresh, founder of the Branch Davidians. The report notes
the ATF became actively interested in the Veteran's
relationship and knowledge of Mr. Koresh. Following the
raid, the ATF renewed its interest in the Veteran, and over
the next several months, he underwent numerous
confrontational interrogations and was subjected to major
disruptions in his daily activities and pursuit of a
livelihood. The Veteran's account suggested that as his
identity and connection with the Waco incident gradually
became revealed, he incurred increasing levels of
interpersonal tension and conflict. Following a mental
status evaluation, the diagnosis was PTSD.
The examiner stated that prior to a series of critical and
high stress incidents, the Veteran displayed no difficulty
performing adequately in the social and employment arenas.
He was involved in a series of intense confrontational
episodes surrounding the aftermath of the ATF raid in Waco,
Texas, and that there continued to be an ongoing residual
tension surrounding this episode.
The Veteran was afforded a VA psychiatric examination in
August 2008. The examiner noted he reviewed the claims
folder. The Veteran asserted the motor vehicle accident in
service was a stressful event. The diagnoses included PTSD.
The examiner noted the Veteran had several psychological
evaluations following service, with no report by him of
symptoms of PTSD related to the in-service motor vehicle
accident. He added that the post-service diagnoses of PTSD
related to the in-service motor vehicle accident were
apparently based primarily on the Veteran's recent subjective
report, perhaps with no access to the claims folder, or prior
subjective reports of the Veteran and psychological
evaluations. The examiner's rationale was that there were
inconsistencies in the Veteran's previous report that the
symptoms of his PTSD were attributable to the incident in
Waco and his current report they are due to the in-service
motor vehicle accident. Based on the available records, he
concluded the causal link between the Veteran's current
symptoms and the Waco incident appeared to be substantially
stronger than the causal link bets his current symptoms and
the in-service motor vehicle accident.
The Board acknowledges the medical opinion supporting the
Veteran's claim. However, this opinion is of little
probative value. An evaluation of the probative value of a
medical opinion is based on the medical expert's personal
examination of the patient, the examiner's knowledge and
skill in analyzing the data, and the medical conclusions
reached. The credibility and weight to be attached to such
opinions are within the providence of the Board as
adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71
(1993). Greater weight may be placed on one physician's
opinion over another depending on factors such as reasoning
employed by the physicians and the extent to which they
reviewed prior clinical records and other evidence.
Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In reviewing
the medical evidence, the Board is "certainly free to
discount the credibility of [a] physician's statement.
Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).
The Board points out that the comment following the VA
outpatient treatment clinic visit in August 2006 was made
without benefit of a review of the claims folder. It is
significant to point out that the Veteran predicated his
claim for Social Security Administration benefits on the
incident in Waco. The January and October 1996 evaluations
by the private psychologist contain an extensive discussion
of the Waco incident, but there is no mention of the in-
service motor vehicle accident. This fact was not addressed
by the examiner in August 2006. In addition, when he was
seen by the VA in August 2006, the Veteran alleged he had
experienced nightmares since the in-service motor vehicle
accident. The Veteran has not provided any objective
evidence to support this claim. The Board reiterates that he
made no mention of the motor vehicle accident when applying
for Social Security benefits in 1995. The Board finds,
therefore, that greater weight is assigned to the opinion of
the VA examiner in August 2008 as this was based on a review
of the claims folder. The examiner acknowledged that PTSD
had been attributed by a medical provider to the motor
vehicle accident, but observed that this was done without
consideration of the fact the Veteran had initially
associated his PTSD with his involvement in the events in
Waco, Texas in 1993.
The Board concludes, accordingly, that the preponderance of
the evidence is against the claim for service connection for
PTSD.
In reaching the conclusions above, the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
appellant's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v.
Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1990).
ORDER
Service connection for PTSD is denied.
REMAND
The Veteran also asserts service connection is warranted for
a disability of each knee. In its August 2007 remand, the
Board noted that while the service treatment records
contained no indication of any complaints concerning the
knees, an October 1985 letter from an attorney referred to
scarring on the Veteran's knee. The Board directed an
examination be performed, and the examiner was to
specifically address the October 1985 letter from the
attorney that mentioned "the scar on [the Veteran's] knee
and leg." The Joint Motion noted that although an
examination was conducted, it failed to discuss the October
1985 letter. The Board is obligated by law to ensure that
the RO complies with its directives, as well as those of the
Court. The Court has stated that compliance by the Board or
the RO is neither optional nor discretionary. Where the
remand orders of the Board or the Court are not complied
with, the Board errs as a matter of law when it fails to
ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998).
In this regard, the Board notes that additional psychiatric
diagnoses of record include generalized anxiety disorder and
paranoid personality disorder. In light of Clemons, 23 Vet.
App. 1, the Board believes further development of the record
is warranted regarding the claim for service connection for a
psychiatric disability other than PTSD.
Under the circumstances of this case, the Board is of the
opinion that additional development of the record is
necessary. Accordingly, the case is REMANDED for the
following action:
1. The RO should contact the Veteran and
request that he furnish the names,
addresses, and dates of treatment of all
medical providers from whom he has
received treatment for disabilities of
either knee and for a psychiatric
disability other than PTSD since his
discharge from service. After securing
the necessary authorizations for release
of this information, the RO should seek
to obtain copies of all treatment records
referred to by the Veteran.
2. The Veteran should be afforded a VA
orthopedic examination to determine the
nature and etiology of his bilateral knee
disabilities. All necessary tests should
be performed. The examiner is
specifically requested to provide an
opinion concerning whether it is at least
as likely as not that any current
disability of either knee is related to
service. The examiner must address the
October 1985 letter from an attorney
referring to knee scarring. The
rationale for any opinion should be set
forth. The claims folder should be made
available to the examiner in conjunction
with the examination.
3. The Veteran should be afforded a VA
psychiatric examination to determine the
nature and etiology of any psychiatric
other than PTSD. All necessary tests
should be performed. The examiner is
requested to provide an opinion
concerning whether it is at least as
likely as not that any current
psychiatric disability is related to
service, to include the motor vehicle
accident. The rationale for any opinion
should be set forth. The claims folder
should be made available to the examiner
in conjunction with the examination.
4. Following completion of the above,
the RO should review the evidence and
determine whether the Veteran's claim may
be granted. If not, he and his
representative should be furnished an
appropriate supplemental statement of the
case and be provided an opportunity to
respond. The case should then be
returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs